The EU’s inExcUsable ignorance

On July 17, 2013 the European Union announced new rules for dealing with Israeli NGOs. Henceforth, no NGO based over the Green Line (beyond what were Israel’s boundaries before 1967) could receive any funding from the EU. Furthermore, all future agreements between Israel and the EU are to include a clause stating that Israel accepts the European Union’s position that all territory over the Green Line does not belong to Israel.

The announcement met with widespread opposition in Israel, ranging across the political spectrum. The EU bureaucrats who had drafted these new regulations seemed shocked at the strong Israeli response to what was, after all, merely the formalization of existing European policy. They seemed unaware that the required clause, in effect forcing Israel to state that it has no claim on the Old City of Jerusalem and the holiest sites of the Jewish people, might upset anyone.

July 17 was, on the Jewish calendar, the ninth of Av, Tisha b’Av, the solemn fast that commemorates the destruction of both the first and second Temples and the conquest of the Land of Israel by first Babylon then Rome.

Israelis feel viscerally that Jerusalem, including the Temple Mount and the Western Wall, are their eternal capital. Most Israelis feel as well that the land that came under Israeli rule in 1967 is part of their homeland. The division within Israel is whether it’s right or worthwhile to trade some of that homeland for a peace deal with its neighbors. It turns out that what most Israelis feel to be right in their bones is supported by the law of nations. The problem is, not enough people know the facts.

The summer of love (and week of war)

In the summer of 1967, 100,000 hippies converged on the Haight-Ashbury neighborhood of San Francisco. They proclaimed their allegiance to love and peace (and several other things not suitable to mention in a G-rated article). Meanwhile, that same summer, over 7,000 miles away, four Arab armies poised to wage a war of annihilation against the Jewish state. Providentially, their plans were thwarted, and the war ended with Israel in control of Judea, Samaria and Gaza.

These pieces of land have become known as the “occupied territories,” and Israel has come under a lot of criticism because of them.

But what are the occupied territories? Who do they really belong to?

Occupation

The basic definition of “occupation” is when territory of one country is controlled by a different country’s army.[1] The words “occupied territory” have very negative connotations. The Nazi and Soviet occupations of huge stretches of Europe and the oppression that they imposed there were enough to give this neutral legal term a massive image problem. But occupation, per se, isn’t illegal. If Israel were occupying territory, that would not, in and of itself, be a crime. In fact, like the Allied occupation of Germany and Japan after World War II (which lasted until 1972!), it might be entirely legitimate.

What are the occupied territories?

At the end of Israel’s War of Independence in 1949, there were a few areas that were at that point controlled by Arabs. These are the pieces of land that would become known as the occupied territories: the Gaza strip (controlled by Egypt) and Judea and Samaria (controlled by Jordan). Gaza was never annexed to, Egypt. Judea and Samaria (now called the West Bank) were annexed to Jordan, but the international community never accepted the legitimacy of the annexation.[2]

Not really occupied

Remember, the definition of occupation is whenterritory of one country is controlled by a different country’s army. A key point is that it has to be the territory of a country for it to be occupied. Before that summer of love and war in 1967, the West Bank and Gaza did not legitimately belong to any other country. So when these areas came under Israeli control, they did not gain the status of “occupied territories.” This is not a matter of dispute in Israel. Every Israeli government, regardless of which parties were in power, since June 1967, has maintained the same position on the issue of alleged “occupation” – there isn’t one.

So, what are they if they aren’t occupied?

In 1922 the League of Nations recognized the Jewish people’s right to their ancient homeland.[3] They said that the Jews could exercise that right in the entire area between the Jordan River and the Mediterranean Sea.[4] From that day to this, no other nation has established recognized legal rights to any of that area.

The pieces of land that are referred to as the “occupied territories” came under Israel’s control in 1967, and Israel has a strong claim to them in international law.

Israel exercised its rights to these territories when, in 1967, it annexed the eastern part of Jerusalem (previously controlled by Jordan) into the Jewish state. But no other part of these territories has been annexed.

A short step

Occupation can be legitimate, but in most people’s mind it’s a short step (usually no step at all) from “occupation” to “illegal occupation.” If Israelis are illegally in control of someone else’s land, then the only issue to discuss is how quickly they can be forced to give up their ill-gotten gains. If they haven’t given them up yet, then they are unrepentant criminals who should be punished.

This theme – Israel the outlaw country – is one of the main planks of the campaign to delegitimatize the Jewish state.

But what if these pieces of land are not illegally occupied?

What if they are not occupied at all?

What if they are areas that Israel has a strong claim to?

What if, despite that strong claim, Israel has refrained from exercising its claim over the territories to keep open the possibility of trading land for peace?

Why this matters so much

Failing to understand Israel’s claims to the disputed territories can make you blind and tone deaf at the same time. The EU’s bland assertion that not only doesn’t the Western Wall belong to Israel but that Israel must be required to state as much, repeatedly and explicitly, shows that the Europeans either don’t understand how Jews feel about their ancient homeland or don’t care. Israel is not some shameless criminal brazenly holding onto its booty. It is rather a brave peace seeker. Against enormous provocation, Israel is still offering the possibility of giving up part of its patrimony in exchange for the greater boon of peace. No Israeli government is going to sign a piece of paper stating in effect that Israelis are criminals when the law says otherwise. The lie of “illegal occupation” has wrought terrible damage on Israel’s standing in the world. Those who promote this claim are deceitful, and those who fall for it are often simply ignorant. It must be refuted at every opportunity.

Leaders of European states sign the treaty that established the European Union. Rome, 1957

On the ninth of Av, the Romans destroyed the Second Temple and exiled the Jewish people from their land. Let us hope that the European Union’s announcement on that same date almost two thousand years later is only a fading echo. One would think that nearly two thousand years would be long enough for the world to realize that Jerusalem does indeed belong to the Jews.

1 The law relating to military occupation is the Fourth Geneva Convention (1949). Part 1: General Provisions. Article 2 states that the Convention shall “apply to all cases of partial or total occupation of the territory of a High Contracting Party [a state].” This language echoes the title of section III of the Hague Convention (1907) that states that it applies to “military authority over the territory of the hostile state.” International law has always assumed that occupation is something that can only happen in the territory of a sovereign state.

2 In fact only two countries accepted Jordanian rule over Judea and Samaria; Britain and Pakistan. Not a single Arab government accepted it.

3 The Council of the League of Nations voted on July 24, 1922, confirming a decision reached at the San Remo Conference on April 25, 1920.

4 The original territory of the Mandate was much larger and included present-day Jordan as well, but Britain reserved the right to exclude the area east of the Jordon River from the Jewish National Home provision and the League of Nations confirmed Britain’s decision to do so in 1922.